EHRC ‘clarifies’ its position on Long Covid as disability

Over the weekend the Equality and Human Rights Commission (EHRC) issued a statement stating it was not its position that Long Covid (LC) was a disability. So irked was I that it prompted not one but two blogposts, the first on the statement and the second on how the Employment Tribunal have treated Long Covid disability claims to date.

The tweet was monumentally stupid but, everyone makes mistakes and so some leeway can be given for that, it was plainly wrong to state that Long Covid was not a disability – a plain application of the statutory test in section 6 of the Equality Act 2010 required, at a minimum, a statement that it might be if the statutory tests are met and it depends on the individual circumstances.

However, at a time when this when we are hearing of more dismissals for LC related reasons and pressure on workers to commit to full or much greater degrees of in-person (rather then remote) working I am cynical as to whether the reason was entirely benign given the nature of the board appointments to EHRC.

Well EHRC message had a backlash, both on twitter, in print, and on radio – don’t know if it made it to TV. This has prompted EHRC to clarify u-turn on its position, with an updated statement today:

There continues to be discussion of the various symptoms related to Covid-19 that are often referred to as ‘long Covid’ and whether they would constitute a disability under the Equality Act.

“Given that ‘long Covid’ is not among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis, we cannot say that all cases of ‘long Covid’ will fall under the definition of disability in the Equality Act. 

“This does not affect whether ‘long Covid’ might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This will be determined by the employment tribunal or court considering any claim of disability discrimination.

“To support workers affected by ‘long Covid’ and avoid the risk of inadvertent discrimination, we would recommend that employers continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases.”

Unlike the previous statement this one does, at least, have the benefit of being legally accurate. This does not clarify the earlier statement, it says something completely different – and it is good that this has been set out. It will, hopefully, go a little way to preventing employees asserting and employer trampling the rights of those who may be disabled for reasons related to LC.

For the reasons I gave in the first post I don’t think this goes far enough – rather than just stating the law it should be promoting good practice (e.g., giving benefit of doubt, referring proactively to medical advisers etc) which could prevent the expense and stress to both employer and worker if the issue of disability needs to be adjudged by a court of Employment Tribunal.

But still, at least EHRC have amended their position from antagonistic to ‘meh’.

I will close with some wise advice on the subject from one of employment law’s star figures, Sean Jones QC: “The only question is whether the employee has an impairment that has a substantial and long term adverse effect on their ability to carry out normal day to day activities. Any employer who assumes those with long covid are not protected is taking a huge risk.”

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